COMMENT: The Imperfect But Necessary Lawsuit: Why Suing State Judges Is Necessary To Ensure That Statutes Creating A Private Cause Of Action Are Constitutional

COMMENT: The Imperfect But Necessary Lawsuit: Why Suing State Judges Is Necessary To Ensure That Statutes Creating A Private Cause Of Action Are Constitutional

Stephen Scaife *

State legislatures can indirectly, but effectively, restrict constitutional rights by enacting statutes that create a private cause of action. This is possible when the cause of action creates potential damages that are so severe as to de facto compel people and entities from engaging in certain conduct. For example, if a statute allows private citizens to sue a person when that person engages in X, then individuals and entities may cease to engage in X if the possible liability arising from engaging in X is too significant. When the United States Constitution protects the conduct that the statute de facto, though indirectly, compels people to forgo, a serious issue arises.

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* J.D. Candidate, 2018, University of Richmond School of Law; B.A., 2015, Presbyterian College. I would like to thank my wife, Rachel Scaife, for her constant love and support. I also want to thank my parents, Tom and Kyung Scaife, for their unending encouragement and love. As well, I am grateful to Professor Jack Preis, who provided invaluable feedback and counsel during this writing process. Finally, I want to thank the University of Richmond Law Review staff for their diligent efforts in preparing this paper for publication.

COMMENT: The Imperfect But Necessary Lawsuit: Why Suing State Judges Is Necessary To Ensure That Statutes Creating A Private Cause Of Action Are Constitutional

COMMENT: In Re Trulia: Revisited and Revitalized

Emma Weiss *

After an escalation in deal litigation that culminated with challenges to 95% of $100,000,000 deals, merger objection litigation that ends in disclosure-only settlements has become a topic of great concern. These cases are concerning because it seems implausible that 95% of all mergers are executed carelessly. The problematic cases all follow a similar pattern. When a merger is announced, multiple shareholder plaintiffs challenge the transaction in multiple jurisdictions. Plaintiffs and corporate defendants then quickly agree to a disclosure-only settlement, wherein the plaintiffs receive trivial supplemental disclosures about the transaction. In return, defendants receive a broad release from liability for future claims. The parties then seek the court’s approval of the settlement, and upon receiving approval, the plaintiffs’ attorney is rewarded with significant attorney’s fees. This cycle is so common it has been dubbed a “deal tax” or “transaction tax.”

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* J.D. Candidate, 2018, University of Richmond School of Law; B.A., 2015, Virginia Polytechnic Institute and State University. I would like to thank the University of Richmond Law Review staff and editors for their assistance in making this piece publishable. I would also like to thank Professor Jessica Erickson for her invaluable advice and guidance throughout the writing process.

Preface

Preface

Brian M. Melnyk, Annual Survey Editor

The University of Richmond Law Review is proud to present the thirty-second issue of the Annual Survey of Virginia Law. The Law Review published the first issue of the Annual Survey in 1985 to provide a resource detailing legislative, judicial, and administrative changes to practitioners and students in the Commonwealth of Virginia. Our mission remains the same today. Now, the Annual Survey is the most widely read publication of the University of Richmond Law Review, reaching lawyers, judges, and legislators in every corner of the Old Dominion. With this in mind, we selected articles and essays we think are invaluable for keeping our readership abreast of the most important updates to Virginia law.

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Preface

Civil Practice And Procedure

Christopher S. Dadak *

This article serves (hopefully) as a practical update on recent changes in Virginia civil practice and procedure. It does not attempt to capture every such change, but the goal is to present the significant points from Supreme Court of Virginia decisions as well as amendments to the Rules of the Supreme Court of Virginia and relevant statutes. Some of the discussion also focuses on certain procedural issues that may not have significantly changed but that a practitioner likely will not face often and could otherwise be a fatal trap for the unwary.

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* Associate, Guynn & Waddell, P.C., Salem, Virginia. J.D., 2012, University of Richmond School of Law; B.A., 2008, Washington and Lee University. The author thanks the editors and staff for their hard work on this article and volume, both specifically dedicated to updates in Virginia law. The work of “spading” articles certainly is tedious and tiresome, but it is critical to ensure the accuracy (and integrity) of scholarship, and its value should not be overlooked.

Preface

Criminal Law And Procedure

Aaron J. Campbell *

This article aims to give a succinct review of notable criminal law and procedure cases decided by the Supreme Court of Virginia and the Court of Appeals of Virginia during the past year. Instead of covering every ruling or rationale in these cases, the article focuses on the “take-away” of the holdings with the most precedential value. The article also summarizes noteworthy changes to criminal law and procedure enacted by the 2017 Virginia General Assembly.

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* Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2009, University of Richmond School of Law; B.A., 2002, Concord University.

Preface

Family Law

Allison Anna Tait *

Another year of family law activity in Virginia brought both new legislation, which will likely have long-term impacts, as well as a new set of judicial opinions that will bring changes to the Virginia rules. The terrain covered in the legislation and opinions varies, but it includes certain fixtures such as marriage and divorce requirements, equitable distribution, spousal and child support, and child custody. This brief overview addresses all these areas, beginning with the legislative changes and then moving to the courts.

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* Assistant Professor, University of Richmond School of Law. Thanks to the University of Richmond Law Review and Brian Melnyk for inviting me to write this overview and to the staff for their excellent editorial work.